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321 U.S.

288
64 S.Ct. 559
88 L.Ed. 733

STARK et al.
v.
WICKARD, Secretary of Agriculture, et al.
No. 211.
Argued Jan. 14, 1944.
Decided Feb. 28, 1944.

Mr. Edward B. Hanify, of Boston, Mass., for petitioners.


Mr. Paul A. Freund, of Washington, D.C., for respondent.
Mr. Justice REED delivered the opinion of the Court.

This class action was instituted in the United States District Court for the
District of Columbia, to procure an injunction prohibiting the respondent
Secretary of Agriculture from carrying out certain provisions of his Order No.
4, effective August 1, 1941, dealing with the marketing of milk in the Greater
Boston, Massachusetts, area. See Agricultural Marketing Agreement Act of
1937, 50 Stat. 246, 7 U.S.C. 601 et seq., 7 U.S.C.A. 601 et seq., and Order
4, United States Department of Agriculture, Surplus Marketing Administration,
Title 7, Code of Federal Regulations, Part 904. The district court dismissed the
suit for failure to state a claim upon which relief can be granted, and its
judgment was affirmed by the Court of Appeals for the District of Columbia,
136 F.2d 786. The respondent War Food Administrator was joined in this court
upon a showing that he had been given powers concurrent with those of the
Secretary. See Executive Order No. 9334, 50 U.S.C.A. Appendix, 601 note,
filed April 23, 1943, 8 F.R. 5423, 5425. We granted certiorari because of the
importance of the question to the administration of this Act. 320 U.S. 723, 64
S.Ct. 58.

The petitioners are producers of milk, who assert that by 904.7(b)(5) and
904.9 of his Order, the Secretary is unlawfully diverting funds that belong to
them. The courts below dismissed the action on the ground that the Act vests

no legal cause of action in milk producers, and since the decision below and the
argument here were limited to that point, we shall confine our consideration to
it.
3

The district court for the District of Columbia has a general equity jurisdiction
authorizing it to hear the suit;1 but in order to recover, the petitioners must go
further and show that the act of the Secretary amounts to an interference with
some legal right of theirs.2 If so, the familiar principle that executive officers
may be restrained from threatened wrongs in the ordinary courts in the absence
of some exclusive alternative remedy will enable the petitioners to maintain
their suit; but if the complaint does not rest upon a claim of which courts take
cognizance, then it was properly dismissed. The petitioners place their reliance
upon such rights as may be expressly or impliedly created by the Agricultural
Marketing Agreement Act of 1937 and the Order issued thereunder.

Although this Court has previously reviewed the provisions of that statute at
length and upheld its constitutionality,3 some further reference to it is necessary
to an understanding of the producer's interest in the funds dealt with by the
Order.4

The immediate object of the Act is to fix minimum prices for the sale of milk
by producers to handlers. It does not forbid sales at prices above the minimum.
It contains

state commerce as will establish prices to farmers at a level that will give
agricultural commodities a purchasing power with respect to articles that
farmers buy, equivalent to the purchasing power of agricultural commodities in
the base period; and, in the case of all commodities for which the base period is
the prewar period, August 1909 to July 1914, will also reflect current interest
payments per acre on farm indebtedness secured by real estate and tax
payments per acre on farm real estate, as contrasted with such interest payments
and tax payments during the base period. The base period in the case of all
agricultural commodities except tobacco and potatoes shall be the prewar
period, August 1909-July 1914. In the case of tobacco and potatoes, the base
period shall be the postwar period, August 1919July 1929.
'(2) To protect the interest of the consumer by (a) approaching the level of
prices which it is declared to be the policy of Congress to establish in
subsection (1) of this section by gradual correction of the current level at as
rapid a rate as the Secretary of Agriculture deems to be in the public interest

and feasible in view of the current consumptive demand in domestic and


foreign markets, and (b) authorizing no action under this title which has for its
purpose the maintenance of prices to farmers above the level which it is
declared to be the policy of Congress to establish in subsection (1) of this
section.'
'Sec. 8a(5) Any person willfully exceeding any quota or allotment fixed for him
under this title by the Secretary of Agriculture, and any other person knowingly
participating, or aiding, in the exceeding of said quota or allotment, shall forfeit
to the United States a sum equal to three times the current market value of such
excess, which forfeiture shall be recoverable in a civil suit brought in the name
of the United States.
'(6) The several district courts of the United States are hereby vested with
jurisdiction specifically to enforce, and to prevent and restrain any person from
violating any order, regulation, or agreement, heretofore or hereafter made or
issued pursuant to this title, in any proceeding now pending or hereafter
brought in said courts.
'(7) Upon the request of the Secretary of Agriculture, it shall be the duty of the
several district attorneys of the United States, in their respective districts, under
the directions of the Attorney General, to institute proceedings to enforce the
remedies and to collect the forFootnote 4--Continued.
feitures provided for in, or pursuant to, this title. Whenever the Secretary, or
such officer or employee of the Department of Agriculture as he may designate
for the purpose, has reason to believe that any handler has violated, or is
violating, the provisions of any order or amendment thereto issued pursuant to
this title, the Secretary shall have power to institute an investigation and, after
due notice to such handler, to conduct a hearing in order to determine the facts
for the purpose of referring the matter to the Attorney General for appropriate
action.
'(8) The remedies provided for in this section shall be in addition to, and not
exclusive of, any of the remedies or penalties provided for elsewhere in this
title or now or hereafter existing at law or in equity.
'(9) The term 'person' as used in this title includes an individual, partnership,
corporation, association, and any other business unit.'
'Sec. 8c(3) Whenever the Secretary of Agriculture has reason to believe that the

issuance of an order will tend to effectuate the declared policy of this title with
respect to any commodity or product thereof specified in subsection (2) of this
section, he shall give due notice of and an opportunity for a hearing upon a
proposed order.
'(4) After such notice and opportunity for hearing, the Secretary of Agriculture
shall issue an order if he finds, and sets forth in such order, upon the evidence
introduced at such hearing (in addition to such other findings as may be
specifically required by this section) that the issuance of such order and all of
the terms and conditions thereof will tend to effectuate the declared policy of
this title with respect to such commodity.
'(5) In the case of milk and its products, orders issued pursuant to this section
shall contain one or more of the following terms and conditions, and (except as
provided in subsection (7)) no others:
'(A) Classifying milk in accordance with the form in which or the purpose for
which it is used, and fixing, or providing a method for fixing, minimum prices
for each such use classification which all handlers shall pay, and the time when
payments shall be made, for milk purchased from producers or associations of
producers. Such prices shall be uniform as to all handlers, subject only to
adjustments for (1) volume, market, and production differentials customarily
applied by the handlers subject to such order, (2) the grade or quality of the
milk purchased, and (3) the locations at which delivery of such milk, or any use
classification thereof, is made to such handlers.
'(B) Providing:
'(i) for the payment to all producers and associations of producers delivering
milk to the same handler of uniform prices for all milk Footnote 4--Continued.
delivered by them: Provided, That, except in the case of orders covering milk
products only, such provision is approved or favored by at least three-fourths of
the producers who, during a representative period determined by the Secretary
of Agriculture, have been engaged in the production for market of milk covered
in such order or by producers who, during such representative period, have
produced at least three-fourths of the volume of such milk produced for market
during such period; the approval required hereunder shall be separate and apart
from any other approval or disapproval provided for by this section; or
'(ii) for the payment to all producers and associations of producers delivering

milk to all handlers of uniform prices for all milk so delivered, irrespective of
the uses made of such milk by the individual handler to whom it is delivered;
subject, in either case, only to adjustments for (a) volume, market, and
production differentials customarily applied by the handlers subject to such
order, (b) the grade or quality of the milk delivered, (c) the locations at which
delivery of such milk is made, and (d) a further adjustment, equitably to
apportion the total value of the milk purchased by any handler, or by all
handlers, among producers and associations of producers, on the basis of their
marketings of milk during a representative period of time.
'(C) In order to accomplish the purposes set forth in paragraphs (A) and (B) of
this subsection (5), providing a method for making adjustments in payments, as
among handlers (including producers who are also handlers), to the end that the
total sums paid by each handler shall equal the value of the milk purchased by
him at the prices fixed in accordance with paragraph (A) hereof.'
Among the provisions of subsection (7), referred to in Section 8c(5), is
authorization for terms described as follows:
'Sec. 8c(7)(D) Incidental to, and not inconsistent with, the terms and conditions
specified in subsections (5), (6), and (7) and necessary to effectuate the other
provisions of such order.'
Sections 8c(8) and 8c(9) provide, with exceptions not here relevant that a
marketing order must have the approval of the handlers of at least 50% of the
volume of the commodity subject to the order unless the Secretary, with the
approval of the President, determines that the proposed order is necessary to
effectuate the declared policy of the Act and 'is the only practical means of
advancing the interests of the producers of such commodity pursuant to the
declared policy * * *.' Section 8c(9)(B). Whether the handlers agree or not, an
order must be an appropriate declaration of policy,5 and it provides that the
Secretary of Agriculture shall hold a hearing when he has reason to believe that
a marketing order would tend to effectuate the purposes of the Act.6If he finds
that an order would be in accordance with the declared policy, he must then
issue it.7Sections 8c(5) and 8c(7) enumerate the provisions that the order may
contain. Section 8c(5)(A) authorizes the Secretary to classify milk in
accordance with the form or purpose of its use, and to fix minimum prices for
each classification. These minima are the use value of the milk. This method of
fixing prices was adopted because the economic value of milk depends upon
the particular use made of it.8It is apparent that serious inequities as among
producers might arise if the prices each received depended upon the use the

handler might happen to mke of his milk; accordingly, Section 8c(5)(B)


authorizes provision to be made for the payment to producers of a uniform
price9for the milk delivered irrespective of the use to which the milk is put by
the individual handler. Section 8c(5)(C) authorizes the Secretary to set up the
necessary machinery to accomplish these purposes.
By Order No. 4, 10the Secretary of Agriculture did fix minimum prices for each
class of milk and required each handler in the Boston area to pay not less than
those minima to producers, 7 C.F.R. 1941 Supp., 904.4, less specified
deductions. 904.7(b), 904.8. In addition, the order exercised the authority
granted by the statute to require the use of a weighted average in reaching the
uniform price to be paid producers, as described in the preceding paragraph.
904.7, 904.8.
Under the Order, the handler does not make final settlement with the producer
until the blended price11has been set, although he must make a part payment on
or before the tenth of each month. 904.8. But within eight days after the end
of each calendar monththe so-called 'delivery period', 904.1(9)the
handler must report his sales and deliveries, classified by use value, 904,5, to
a 'market administrator.' 904.1(8). On the basis of these reports, the
administrator computes the blended price and announces it on the twelfth day
following the end of the delivery period. 904.7(b). On the twenty-fifth day,
the handlers are required to pay the balance due of the blended price so fixed to
the producers. 904.8(b).
Were no administrative deductions necessary, the blended price per
hundredweight of milk could readily be determined by dividing the total value
of the milk used in the marketing area at the minimum prices for each
classification by the number of hundredweight of raw milk used in the area.12
However, the Order requires several adjustments for purposes admittedly
authorized by statute, so that the determination of the blended price as actually
made is drawn from the total use value less a sum which the administrator is
direction to retain to meet various incidental adjustments.13In practice, each
handler discharges his obligation to the producers of whom he bought milk by
making two payments: one payment, the blended price, is apportioned from the
values at the minimum price for the respective classes less administrative
deductions and is made to the producer himself;14the other payment is equal to
these deductions and is made, in the language of the Order, 'to the producer,
through the market administrator,' in order to enable the administrator to cover
the differentials and deductions in question.15It is the contention of the
petitioners that by 904.7(b)(6)16of the Order the Secretary has directed the
administrator to deduct a sum for the purpose of meeting payments to

cooperatives as required by 904.9, and that the Act does not authorize the
Secretary to include in his order provision for payments of that kind or for
deductions to meet them. Apparently, this deduction for payments to
cooperatives is the only deduction that is an unrecoverable charge against the
producers. The other items deducted under 904.7(b) are for a revolving fund
or to meet differentials in price because of location, seasonal delivery, et cetera.
These producer petitioners allege that they have delivered milk to handlers in
the 'Greater Boston,' Massachusetts, marketing area under the provisions of the
Order. They state that they are not members of a cooperative association
entitled under the Order to the contested payments and that, as producers, many
of them voted against the challenged amendment on the producers' referendum
under 8c(9) and 8c(19) of the Act. These allegations are admitted by the
defense upon which dismissal was based, namely, that the petition fails to state
a claim upon which relief could be granted. From the preceding summary of
the theory and plan of the statutory regulation of minimum prices for milk
affecting interstate commerce, it is clear that these petitioners have exercised
the right granted them by the statute and Order to deliver their milk to 'Greater
Boston' handlers at the guaranteed minimum prices fixed by the Secretary of
Agriculture in the Order. Sec. 904.4. Upon accepting that delivery the handler
was required by the Order to pay to these producers their minimum prices in the
manner set forth in 904.8. Simply stated, this section required the handler to
pay directly to the producer the blended price as determined by the
administrator and to pay to the producers through the administrator for use in
meeting the deductions authorized by the order of the Secretary and approved
by two-thirds of the producers, 8c(9)(B), the difference between the blended
price and the minimum price. The Order directed the administrator to deduct
from the funds coming into his hands from the producers' sale price the
payments to cooperatives. 904.9.
It is this deduction which the producers challenge as beyond the Secretary's
statutory power. The respondents answer that the petitioners have not such a
legal interest in this expenditure or in the administrator's settlement fund as
entitles them to challenge the action of the Secretary in directing the
disbursement. The Government says that as the producers pay nothing into the
settlement fund and receive nothing from it, they have no legally protected right
which gives them standing to sue. There is, of course, no question but that the
challenged deduction reduces pro tanto the amount actually received by the
producers for their milk.
By the statute and Order, the Secretary has required all area handlers dealing in
the milk of other producers to pay minimum prices as just described.

904.1(6), 904.4; Act, 8c(14). The producer is not compelled by the Order to
deliver (Act 8c(13)(B) but neither can he be required to market elsewhere and
if he finds a dealer in the area who will buy his product, the producer by
delivery of milk comes within the scope of the Act and the Order. The Order
fixing the minimum price obviously affects by direct Governmental action the
producer's business relations with handlers. Columbia Broad-casting System v.
United States, 316 U.S. 407, 422, 62 S.Ct. 1194, 1202, 86 L.Ed. 1563. Cf.
Chicago Junction Case, 264 U.S. 258, 267, 44 S.Ct. 317, 320, 68 L.Ed. 667.
The fact that the producer may sell to the handler for any price above the
minimum is not of moment in determining whether or not the statute and Order
secure to him a minimum price. Should the producer sell his milk to a handler
at prices in excess of the minimum, the handler would nevertheless be
compelled to pay into the fund the same amount. The challenged deduction is a
burden on every area sale. 904.7(a), 904.8(b). In substance petitioners'
allegation is that in effect the Order directed without statutory authority a
deduction of a sum to pay the United States a sales tax on milk sold. The statute
and Order create a right in the producer to avail himself of the protection of a
minimum price afforded by Governmental action. Such a right created by
statute is mandatory in character and obviously capable of judicial enforcement.17
For example the Order could not bar any qualified producers in the milk shed
from selling to area handlers. Like the instances just cited from railway labor
cases, supra, n. 17, the petitioners here voluntarily bring themselves within the
coverage of the Act. It cannot be fairly said that because producers may choose
not to sell in the area, those who do choose to sell there necessarily must sell,
without a right of challenge, in accordance with unlawful requirements of
administrators. Upon purchase of his milk by a handler, the statute endows the
producer with other rights, e.g., the right to be paid a minimum price. Order,
904.4.
The mere fact that Governmental action under legislation creates an opportunity
to receive a minimum price does not settle the problem of whether or not the
particular claim made here is enforceable by the District Court. The deduction
for cooperatives may have detrimental effect on the price to producers and that
detriment be damnum absque injuria.18It is only when a complainant possesses
something more than a general interest in the proper execution of the laws that
he is in a position to secure judicial intervention. His interest must rise to the
dignity of an interest personal to him and not possessed by the people generally. 19
Such a claim is of that character which constitutionally permits adjudication by
courts under their general powers.20
We deem it clear that on the allegations of the complaint these producers have
such a personal claim as justifies judicial consideration. It is much more

definite and personal than the right of complainants to judicial consideration of


their objections to regulations, which this Court upheld in Columbia
Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed.
1563. In the present case a reexamination of the preceding statement of facts
and summary of the statute and Order will show that delivering producers are
assured minimum prices for their milk. 904.4. The Court directs the handler
to pay that minimum as follows:
A. By 904.8(a) the handler is to make a preliminary part payment of the
blended price and later, 904.8(b)(1) the handler makes the final payment to
the producer of the blended price computed as the Order directs. It is clear that
the Order compels the handler to pay not only the blended price, which is
always less than the uniform minimum price, but the entire minimum price,
because 904.8(b) directs the handler's payment of the entire minimum value
as ascertained by 904.7(a)(1) and (2). The blended price is reached by
subtracting among other items the cooperative payment, here in question, from
the minimum price. 904.7(b)(5).
B. The balance of the minimum price, which the handler owes to the producer,
he must pay 'to the producer, through the market administrator' by payment into
the settlement or equalization fund two days ahead of the final date for payment
of the blended price. 904.8(b)(3). This balance of the minimum purchase
price is then partly used by the administrator to pay the cooperatives.
904.9(b). The handler is simply a conduit from the administrator who receives
and distributes the minimum prices. The situation would be substantially the
same if an administrator received as trustee for the producers the purchase price
of their milk, paid expenses incurred in the operation, and paid the balance to
the producers. Under such circumstances we think the producers have legal
standing to object to illegal provisions of the Order.
However, even where a complainant possesses a claim to executive action
beneficial to him, created by federal statute, it does not necessarily follow that
actions of administrative officials, deemed by the owner of the right to place
unlawful restrictions upon his claim, are cognizable in appropriate federal
courts of first instance. When the claims created are against the United States,
no remedy through the courts need be provided. United States v. Babcock, 250
U.S. 328, 331, 39 S.Ct. 464, 465, 63 L.Ed. 1011, and cases cited; Work v.
United States ex rel. Rives, 267 U.S. 175, 181, 45 S.Ct. 252, 254, 69 L.Ed. 561;
Butte, A. & P. Ry. v. United States, 290 U.S. 127, 142, 143, 54 S.Ct. 108, 112,
78 L.Ed. 222. To reach the dignity of a legal right in the strict sense, it must
appear from the nature and character of the legislation that Congress intended
to create a statutory privilege protected by judicial remedies. Under the unusual

circumstances of the historical development of the Railway Labor Act, 45


U.S.C.A. 151, this Court has recently held that an administrative agency's
determination of a controversy between unions of employees as to which is the
proper bargaining representative of certain employees is not justiciable in
federal courts. General Committee v. M.-K.-T.R. Co., 320 U.S. 323, 64 S.Ct.
146. Under the same Act it was held on the same date that the determination by
the National Mediation Board of the participants in an election for
representatives for collective bargaining likewise was not subject to judicial
review. Switchmen's Union v. Mediation Board, 320 U.S. 297, 64 S.Ct. 95.
This result was reached because of this Court's view that jurisdictional disputes
between unions were left by Congress to mediation rather than adjudication.
320 U.S. 302 and 337, 64 S.Ct. 97 and 152. That is to say, no personal right of
employees, enforcible in the courts, was created in the particular instances
under consideration. 320 U.S. 337, 64 S.Ct. 152. But where rights of collective
bargaining, created by the same Railway Labor Act, contained definite
prohibitions of conduct or were mandatory in form, this Court enforced the
rights judicially. 320 U.S. 330, 331, 64 S.Ct. 149, 150. Cf. Texas & N.O.R. Co.
v. Brotherhood of R. & S.S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034;
Virginian Ry. v. System Federation, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789.
It was pointed out in the Switchmen's case that:
'If the absence of jurisdiction of the federal courts meant a sacrifice or
obliteration of a right which Congress had created, the inference would be
strong that Congress intended the statutory provisions governing the general
jurisdiction of those courts to control.' 320 U.S. at page 300, 64 S.Ct. at page
97.
The only opportunity these petitioners had to complain of the contested
deduction was to appear at hearings and to vote for or against the proposed
order. Act, 8c(3), 8c(9) and 8c(19); Order, preamble. So long as the
provisions of the Order are within the statutory authority of the Secretary such
hearings and balloting furnish adequate opportunity for protest. Morgan v.
United States, 298 U.S. 468, 480, 56 S.Ct. 906, 911, 80 L.Ed. 1288. But where
as here the issue is statutory power to make the deduction required by Order,
904.9, under the authority of 8c(7)(D) of the Act, a mere hearing or
opportunity to vote cannot protect minority producers against unlawful
exactions which might be voted upon them by majorities. It can hardly be said
that opportunity to be heard on matters within the Secretary's discretion would
foreclose an attack on the inclusion in the Order of provisions entirely outside
of the Secretary's delegated powers.

Without considering whether or not Congress could create such a definite


personal statutory right in an individual against a fund handled by a Federal
agency, as we have here, and yet limit its enforceability to administrative
determination, despite the existence of federal courts of general jurisdiction
established under Article III of the Constitution, the Congressional grant of
jurisdiction of this proceeding appears plain. There is no direct judicial review
granted by this statute for these proceedings. The authority for a judicial
examination of the validity of the Secretary's action is found in the existence of
courts and the intent of Congress as deduced from the statutes and precedents as
hereinafter considered.
The Act bears on its face the intent to submit many questions arising under its
administration to judicial review. 8a(6), 8c(15)(A) and (B). It specifically
states that the remedies specifically provided in 8a are to be in addition to any
remedies now existing at law or equity. 8a(8). This Court has heretofore
construed the Act to grant handlers judicial relief in addition to the statutory
review specifically provided by 8c(15). On complaint by the United States,
the handler was permitted by way of defense to raise issues of a want of
statutory authority to impose provisions on handlers which directly affect such
handlers. United States v. Rock Royal Co-op., 307 U.S. 533, 560, 561, 59 S.Ct.
993, 1006, 1007, 83 L.Ed. 1446. In the Rock Royal case the Government had
contended that the handlers had no legal standing in the suit for enforcement to
attack provisions of the order relating to handlers. While we upheld the
contention of the Government as to the lack of standing of handlers to object to
the operation of the producer settlement fund on the ground that the handlers
had no 'financial interest' in that fund, we recognized the standing of a
proprietary handler to question the alleged discrimination shown in favor of the
co-operative handlers. The producer settlement fund is created to meet
allowable deductions by the payment of a part of the minimum price to
producers through the market administrator. See note 15, supra. Rock Royal
pointed out that handlers were without standing to question the use of the fund,
because handlers had no financial interest in the fund or its use. It is because
every dollar of deduction comes from the producer that he may challenge the
use of the fund. The petitioners' complaint is not that their blended price is too
low, but that the blended price has been reduced by a misapplication of money
deducted from the producers' minimum price.
With this recognition by Congress of the applicability of judicial review in this
field, it is not to be lightly assumed that the silence of the statute bars from the
courts an otherwise justiciable issue, United States v. Griffin, 303 U.S. 226,
238, 58 S.Ct. 601, 607, 82 L.Ed. 764; Shields v. Utah Idaho R. Co., 305 U.S.
177, 182, 59 S.Ct. 160, 163, 83 L.Ed. 111; cf. American Federation of Labor v.

Labor Board, 308 U.S. 401, 404, 412, 60 S.Ct. 300, 301, 305, 84 L.Ed. 347.
The ruling in Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 27
S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075, is not authority to the contrary. It
was there held that the statute placed the power in the Interstate Commerce
Commission to hear the complaint stated, not in the state court where it was
brought. The Commission award was then to be enforced in court. Page 438 of
204 U.S., page 354 of 27 S.C t., 51 L.Ed. 553, 9 Ann.Cas. 1075. Here, there is
no forum, other than the ordinary courts, to hear this complaint. When, as we
have previously concluded in this opinion, definite personal rights are created
by federal statute, similar in kind to those customarily treated in courts of law,21
the silence of Congress as to judicial review is, at any rate in the absence of an
administrative remedy, not to be construed as a denial of authority to the
aggrieved person to seek appropriate relief in the federal courts in the exercise
of their general jurisdiction. When Congress passes an Act empowering
administrative agencies to carry on governmental activities, the power of those
agencies is circumscribed by the authority granted.22This permit the courts to
participate in law enforcement entrusted to administrative bodies only to the
extent necessary to protect justiciable individual rights against administrative
action fairly beyond the granted powers. The responsibility of determining the
limits of statutory grants of authority in such instances is a judicial function
entrusted to the courts by Congress by the statutes establishing courts and
marking their jurisdiction. Cf. United States v. Morgan, 307 U.S. 183, 190, 191,
59 S.Ct. 795, 799, 83 L.Ed. 1211. This is very far from assuming that the courts
are charged more than administrators or legislators with the protection of the
rights of the people. Congress and the Executive supervise the acts of
administrative agents. The powers of departments, boards and administrative
agencies are subject to expansion, contraction or abolition at the will of the
legislative and executive branches of the government. These branches have the
resources and personnel to examine into the working of the various
establishments to determine the necessary changes of function or management.
But under Article III, Congress established courts to adjudicate cases and
controversies as to claims of infringement of individual rights whether by
unlawful action of private persons or by the exertion of unauthorized
administrative power.
It is suggested that such a ruling puts the agency at the mercy of objectors,
since any provisions of the Order may be attacked as unauthorized by each
producer. To this objection there are adequate answers. The terms of the Order
are largely matters of administrative discretion as to which there is no
justiciable right or are clearly authorized by a valid act. United States v. Rock
Royal Co-op., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446. Technical details of
the milk business are left to the Secretary and his aides. The expenses of

litigation deter frivolous contentions. If numerous parallel cases are filed, the
courts have ample authority to stay useless litigation until the determination of
a test case. Cf. Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81
L.Ed. 153. Should some provisions of an order be held to exceed the statutory
power of the Secretary, it is well within the power of a court of equity to so
mold a decree as to preserve in the public interest the operation of the portion of
the order which is not attacked pending amendment.
It hardly need be added that we have not considered the soundness of the
allegations made by the petitioners in their complaint. The trial court is free to
consider whether the statutory authority given the Secretary is a valid answer to
the petitioners' contention. We merely determine the petitioners have shown a
right to a judicial examination of their complaint.
Reversed.
Mr. Justice BLACK is of the view that the judgment should be affirmed for the
reasons given in the opinion of the United States Court of Appeals for the
District of Columbia.
Mr. Justice JACKSON took no part in the consideration or decision of this
case.
Mr. Justice FRANKFURTER, dissenting.
The immediate issue before us is whether these plaintiffs, milk producers, can
in the circumstances of this case go to court to complain of an order by the
Secretary of Agriculture fixing rates for the distribution of milk within the
Greater Boston marketing area. The solution of that question depends, however,
upon a proper approach toward such a scheme of legislation as that formulated
by Congress in the Agricultural Marketing Agreement Act of 1937.
Apart from legislation touching the revenue, the public domain, national banks
and patents, not until the Interstate Commerce Act of 1887, 49 U.S.C.A. 1 et
seq., did Congress begin to place economic enterprise under systems of
administrative control. These regulatory schemes have varied in the range of
control exercised by government; they have varied no less in the procedures by
which the control was exercised. More particularly, these regimes of national
authority over private enterprise reveal great diversity in the allotment of power
by Congress as between courts and administrative agencies. Congress has not
made uniform provisions in defining who may go to court, for what grievance,

and under what circumstances, in seeking relief from administrative


determinations. Quite the contrary. In the successive enactments by which
Congress has established administrative agencies as major instruments of
regulation, there is the greatest contrariety in the extent to which, and the
procedures by which, different measures of control afford judicial review of
administrative action.
Except in those rare instances, as in a claim of citizenship in deportation
proceedings, when a judicial trial becomes a constitutional requirement because
of 'The difference of security of judicial over administrative action,' Ng Fung
Ho. v. White, 259 U.S. 276, 285, 42 S.Ct. 492, 495, 66 L.Ed. 938, whether
judicial review is available at all and, if so, who may invoke it, under what
circumstances, in what manner, and to what end, are questions that depend for
their answer upon the particular enactment under which judicial review is
claimed. Recognition of the claim turns on the provisions dealing with judicial
review in a particular statute and on the setting of such provisions in that statute
as part of a scheme for accomplishing the purposes expressed by that statute.
Apart from the text and texture of a particular law in relation to which judicial
review is sought 'judicial review' is a mischievous obstruction. There is no such
thing as a common law of judicial review in the federal courts. The procedural
provisions in more than a score of these regulatory measures prove that the
manner in which Congress has distributed responsibility for the enforcement of
its laws between courts and administrative agencies runs a gamut all the way
from authorizing a judicial trial de novo of a claim determined by the
administrative agency to denying all judicial review and making administrative
action definitive.
Congress has not only devised different schemes of enforcement for different
Acts. It has from time to time modified and restricted the scope of review under
the same Act. Compare 16 of the Act to Regulate Commerce, February 4,
1887, c. 104, 24 Stat. 379, 384, 385, with 13 of the Commerce Court Act,
June 18, 1910, c. 309, 36 Stat. 539, 554, 555, and 49 U.S.C. 16(12), 49
U.S.C.A. 16(12), and the latter with enforcement of reparation orders, 49
U.S.C. 16(2), 49 U.S.C.A. 16(2). Moreover the same statute, as is true of
the Interstate Commerce Act, may make some orders not judicially reviewable
for any purpose, see e.g., United States v. Los Angeles R.R., 273 U.S. 299, 47
S.Ct. 413, 71 L.Ed. 651, or reviewable by some who are adversely affected and
not by others, e.g., Singer & Sons v. Union Pacific Co., 311 U.S. 295, 305-308,
61 S.Ct. 254, 258260, 85 L.Ed. 198. The oldest scheme of administrative
controlour customs revenue legislationshows in its evolution all sorts of
permutations and combinations in using available administrative and judicial
remedies. See, for instance, Elliott v. Swartwout, 10 Pet. 137, 9 L.Ed. 373; Cary

v. Curtis, 3 How. 236, 11 L.Ed. 576; Den ex dem. Murray's Lessee et al. v.
Hoboken Land & Improvement Co., 18 How. 272, 15 L.Ed. 372; Hilton v.
Merritt, 110 U.S. 97, 38 S.Ct. 548, 28 L.Ed. 83; for a general survey, see
Freund, Administrative Powers over Persons and Property, 260-62. And
only the other day we found the implications of the Railway Labor Act, c. 347,
44 Stat. (part 2) 577, as amended, c. 691, 48 Stat. 1185, 45 U.S.C. 151 et seq.,
45 U.S.C.A. 151 et seq. to be such that courts could not even exercise the
function of keeping the National Mediation Board within its statutory authority.
Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95.
Were this list of illustrations extended and the various regulatory schemes
thrown into a hotchpot, the result would be hopeless discord. And to do so
would be to treat these legislative schemes as though they were part of a single
body of law instead of each being a self-contained scheme.
The divers roles played by judicial review in the administration of regulatory
measures other than the Agricultural Marketing Act cannot tell us when and for
whom judicial review of administrative action can be had under that Act. The
fact that certain classes of individuals adversely affected by a ruling of the
Interstate Commerce Commission can and other classes cannot obtain redress in
court, does not tell us what classes may and what classes may not obtain
judicial redress for action by the Secretary of Agriculture which affects these
respective classes adversely. And to cite the Switchmen's case, supra, in
support of this case is to treat our decisions too lightly. In the numerous cases
either granting or denying judicial review, grant or denial were reached not by
applying some 'natural law' of judicial review nor on the basis of some general
body of doctrines for construing the diverse provisions of the great variety of
federal regulatory statutes. Judicial review when recognizedits scope and its
incidencewas derived from the materials furnished by the particular statute in
regard to which the opportunity for judicial review was asserted. This is the
lesson to be drawn from the prior decisions of this Court on judicial review, and
not any doctrinaire notions of general applicability to statutes based on different
schemes of administration and conveying different purposes by Congress in the
utilization of administrative and judicial remedies for the enforcement of law.
However useful judicial review may be, it is for Congress and not for this
Court to decide when it may be usedexcept when the Constitution commands
it. In this case there is no such command. Common-law remedies withheld by
Congress and unrelated to a new scheme for enforcing new rights and duties
should not be engrafted upon remedies which Congress saw fit to particularize.
To do so impliedly denies to Congress the constitutional right of choice in the
selection of remedies, and turns common-law remedies into constitutional
necessities simply because they are old and familiar.

When recently the Agricultural Marketing Act was in litigation before us, we
sustained its constitutionality and defined its scope in the light of its history, its
purposes and its provisions. United States v. Rock Royal Co-op., 307 U.S. 533,
59 S.Ct. 993, 83 L.Ed. 1446. We held in that case that a milk handler cannot
challenge in court such an order as the one which is now assailed. Again we
must turn to the history, the purposes and the provisions of the Act to determine
whether Congress gave the producer the right of judicial relief here sought.
In 1931 and 1932, prices of manufactured dairy products reached the lowest
level in twenty-five years. Because of their relatively weak bargaining position,
milk producers suffered most seriously. See Mortenson, Milk Distribution as a
Public Utility, p. 6; Black, The Dairy Industry and the AAA, c. III; State Milk
and Dairy Legislation (U.S. Gov't Printing Office, 1941) p. 3. Accordingly,
Congress decided that the public interest in the handling of milk in interstate
commerce could no longer be left to the haggling of a disorderly market,
mitigated by inadequate organization within the industry. The Agricultural
Adjustment Act of 1933, c. 25, 48 Stat. 31, was the result. The 'essential
purpose' of the series of enactments thus initiated was to raise the producer's
prices. Sen.Rep. No. 1011, 74th Cong., 3d Sess., p. 3. The Act of 1933 was
amended in 1935, c. 641, 49 Stat. 750, and partially reenacted and amended by
the Agricultural Marketing Agreement Act of 1937, with which we are here
concerned. Chapter 296, 50 Stat. 246, c. 567, 50 Stat. 563, 7 U.S.C. 601 et
seq., 7 U.S.C.A. 601 et seq.
An elaborate enactment like this, devised by those who know the needs of the
industry and drafted by legislative specialists, is to be treated as an organism.
Every part must be related to the scheme as a whole. The legislation is a selfcontained code, and within it must be found whatever remedies Congress saw
fit to afford. For the Act did not give new remedies for old rights. It created
new rights and new duties, and precisely defined the remedies for the
enforcement of duties and the vindication of rights. Of course the statute
concerns the interests of producers, handlers and consumers. But it does not
define or create any legal interest for the consumer, and it specifically provides
that 'No order issued under this title shall be applicable to any producer in his
capacity as a producer.' 8c(13) (B).
The statute as an entirety makes it clear that obligations are imposed on
handlers alone. Section 8c(5)(A) authorizes the Secretary to classify milk
according to the form in which or the purpose for which it is used. Section
8c(5)(B)(ii) directs the Secretary to provide for the payment to producers of a
uniform price 'irrespective of the uses made of such milk by the individual
handler to whom it is delivered'. This latter, known as the 'blended price', is

computed under the Secretary's Order No. 4 of July 28, 1941, by multiplying
the use value of the milk by the total quantity, making specified deductions and
additions, and then dividing the resulting sum by the total quantity of the milk.
904.7(b). A deduction for payments to cooperatives which enters into this
computation is the object of petitioners' attack.
It is apparent that the minimum 'blended price' which the producer receives
may be different than the minimum 'use value' fixed by the Secretary or his
Administrator which the handler must pay. Thus 8c(5)(C) authorizes
provision for necessary adjustments. The mechanics of these adjustments are
described in the Secretary's Order No. 4. In short, the handler who sells or uses
his milk so that its value is more than the minimum 'blended price' he pays the
producer, must pay the excess to a settlement fund, and the handler who puts
his milk to a lower value use than the minimum 'blended price' he pays in turn
receives the difference out of the fund. 904.8(b).
Violation of any order by a handler makes him subject to criminal proceedings.
8c(14). Thus, while the Act and the Order may affect the interests of
producers as well as those of handlers, legally they operate directly against
handlers only. The corrective processes provided by the Act reflect this
situation. Section 8c(15) permits a handler to challenge an order before the
Secretary, and if dissatisfied, he may bring suit in equity before a district court.
Provision for judicial remedies for consumers and producers is significantly
absent. Such omission is neither inadvertent nor surprising. It would be
manifestly incongruous for an Act which specifically provides that no order
shall be directed at producers to give to producers the right to attack the validity
of such an order in court.
To create a judicial remedy for producers when the statute gave none is to
dislocate the Congressional scheme of enforcement. For example, 8c(15)(B)
provides that the pendency of a proceeding for review instituted by a handler
shall not impede or delay proceedings brought under 8a(6) for compliance
with an order. Because there is no provision for court review of an order on a
producer's petition, naturally there is no corresponding provision to guard
against such interference with enforcement of an order. By giving producers the
right to sue although Congress withheld that right, the suspension of a milk
order pending disposition of a producer's suit will now depend upon the
discretion of trial judges. And technical details concerning the milk industry
that were committed to the Secretary of Agriculture are now made subjects of
litigation before ill-equipped courts.
By denying them access to the courts Congress has not left producers to the

mercy of the Secretary of Agriculture. Congress merely has devised means


other than judicial for the effective expression of producers' interests in the
terms of an order. Before the Secretary may issue an order he is required to
'give due notice of and an opportunity for a hearing upon a proposed order.'
8c(3). At such a hearing all interested persons may submit relevant evidence,
and the procedure makes adequate provision for notice to those who may be
affected by an order. See Administrative Procedure and Practice in the
Department of Agriculture under the Agricultural Marketing Agreement Act of
1937 (U.S. Department of Agriculture, 1939) p. 11 et seq. Nor are these the
only or the most effective means for safeguarding the producer's interest. While
an order may be issued despite the objection of handlers of more than 50% of
the volume of the commodity covered by the order, no order may issue when
not approved by at least two-thirdseither numerically or according to volume
of productionof the producers. 8c(9).
The fact that Congress made specific provision for submission of some defined
questions to judicial review would hardly appear to be an argument for
inferring that judicial review even of broader scope is also open as to other
questions for which Congress did not provide judicial review. The obvious
conclusion called for is that as to such other questions, judicial review was
purposefully withheld. In the frame of this statute such an omission should not
be treated as having no meaning, or rather as meaning that an omission is to be
given the same effect as an inclusion. Nor does 8a(8) referring to remedies
'existing at law or in equity' touch our problem. That only adds to the remedies
in 8a(5)(7) for the enforcement of the Act. It in no way qualifies or
expands the express provisions of the Statute in 8c(15) for judicial review of
such an order as the presentspecification of the class of persons who are
given the right to resort to courts and narrow limitation of the scope of judicial
review. The remedy of review here sought by producers is by 8c(15)
explicitly restricted to handlers; and such review is not like that before the
Court, a conventional suit in equity, but is a procedure for review of an adverse
ruling in a price proceeding before the Secretary of Agriculture. It is a review
of an administrative review, not an independent judicial determination.
An elaborate process of implications should not be invented to escape the plain
meaning of 8c(15), and to dislocate a carefully formulated scheme of
enforcement. That is not the way to construe such legislation, that is, if Chief
Justice Taft was right in characterizing as 'a conspicuous instance of his (Chief
Justice White's) unusual and remarkable power and facility in statesmanlike
interpretation of statute law', 257 U.S. xxv, the doctrine established in Texas &
Pac. Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9
Ann.Cas. 1075, and more particularly the way in which 22 of the Act to

Regulate Commerce, 49 U.S.C.A. 22, was therein construed to effectuate the


purposes of that Act. 204 U.S. at pages 446, 447, 27 S.Ct. at pages 357, 358, 51
L.Ed. 553, 9 Ann.Cas. 1075.
The Court is thus adding to what Congress has written a provision for judicial
relief of producers. And it sanctions such relief in a case in which petitioners
have no standing to sue on any theory. The only effect of the deduction which is
challenged by the producers is to fix a minimum price to which they are
entitled perhaps lower than that which might otherwise have been determined.
But the Act does not prevent their bargaining for a price higher than the
minimum, and we are advised by the Government of what is not denied by
petitioners, that such arrangements are by no means unusual. This Court has
held that a consumer has no standing to challenge a minimum price order like
the one before us. City of Atlanta v. Ickes, 308 U.S. 517, 60 S.Ct. 170, 84 L.Ed.
440; cf. Sprunt & Son v. United States, 281 U.S. 249, 50 S.Ct. 315, 74 L.Ed.
832. Surely a producer who may bargain for prices above the minimum is in no
better legal position than a consumer who urges that too high a minimum has
been improperly fixed. The Commonwealth of Massachusetts which purchased
milk for its public institutions valued at $105,232.97 in 1940, and $117,584.50
in 1941, has hardly a less substantial interest in the minimum price than that of
the petitioners. And yet Massachusetts has no standing to object to the
minimum fixed by an order.
The alleged lower minimum 'blended price' is the sum and substance of
petitioners' complaint. If that gives them no standing to sue nothing does. An
attack merely on the method by which the blended price was reduced may
present an interesting abstract question but furnishes no legal right to sue. The
producers have nothing to do with the settlement fund. They receive the
blended price in any event. Even assuming that the Administrator may have
fixed a blended price in ways that may argue an inconsistency between what he
has done and what Congress told him to do, any resulting disadvantage to a
producer is wholly unrelated to the settlement fund. That fund is contributed by
handlers and paid by handlers. If handlers may not attack payments to
cooperatives, as this Court held in United States v. Rock Royal Co-op., supra,
307 U.S. at page 561, 59 S.Ct. at page 1007, 83 L.Ed. 1446, with all deference I
am unable to see how producers can be in a better position to attack such
payments. This suit was rightly dismissed.
1

See 18 D.C.Code 41, as amended, 49 Stat. 1921. The District of Columbia


court may also exercise the same jurisdiction of United States district courts
generally, 18 D.C.Code 43, which have jurisdiction under the Judicial Code
over cases arising under acts regulating interstate commerce. Judicial Code,

24(8), 28 U.S.C. 41(8), 28 U.S.C.A. 41(8); Mulford v. Smith, 307 U.S. 38,
59 S.Ct. 648, 83 L.Ed. 1092; Turner, Dennis & Lowry Lumber Co. v. Chicago,
M. & St. P. Ry., 271 U.S. 259, 46 S.Ct. 530, 70 L.Ed. 934; Robertson v. Argus
Hosiery Mills, 6 Cir., 121 F.2d 285.
2

See Tennessee Electric Power Co. v. T.V.A., 306 U.S. 118, 137, 138, 59 S.Ct.
366, 369, 83 L.Ed. 543.

See United States v. Rock Royal Coop., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed.
1446; H. P. Hood & Sons v. United States, 307 U.S. 588, 59 S.Ct. 1019, 83
L.Ed. 1478.

The following clauses of the Act are necessary to a consideration of this case:
'Sec. 2. It is hereby declared to be the policy of Congress
'(1) Through the exercise of the powers conferred upon the Secretary of
Agriculture under this title, to establish and maintain such orderly marketing
conditions for agricultural commodities in interfound to be 'approved or favored' either by two-thirds of the producers in
number or by volume of the commodity produced. Section 8c(19) authorizes
the Secretary to hold a referendum to determine whether producers approve.
'Sec. 8c(13)(B) No other issued under this title shall be applicable to any
producer in his capacity as a producer.'
'Sec. 8c(14) Any handler subject to an order issued under this section, or any
officer, director, agent, or employee of such handler, who violates any
provision of such order (other than a provision calling for payment of a pro rata
share of expenses) shall, on conviction, be fined not less than $50 or more than
$500 for each such violation, and each day during which such violation
continues shall be deemed a separate violation: Provided, That if the court finds
that a petition pursuant to subsection (15) of this section was filed and
prosecuted by the defendant in good faith and not for delay, no penalty shall be
imposed under this subsection for such violations as occurred between the date
upon which the defendant's petition was filed with the Secretary, and the date
upon which notice of the Secretary's ruling thereon was given to the defendant
in accordance with regulations prescribed pursuant to subsection (15).'
'Sec. 8c(15) (A) Any handler subject to an order may file a written petition with
the Secretary of Agriculture, stating that any such order or any provision of any
such order or any obligation imposed in connection therewith is not in
accordance with law and praying for a modification thereof or to be exempted

therefrom. He shall thereupon be given an opportunity for a hearing upon such


petition, in accordance with regulations made by the Secretary of Agriculture,
with the approval of the President. After such hearing, the Secretary shall make
a ruling upon the prayer of such petition which shall be final, if in accordance
with law.
'(B) The District Courts of the United States (including the Supreme Court of
the District of Columbia) in any district in which such handler is an inhabitant,
or has his principal place of business, are hereby vested with jurisdiction in
equity to review such ruling, provided a bill in equity for that purpose is filed
within twenty days from the date of the entry of such ruling. Service of process
in such proceedings may be had upon the Secretary by delivering to him a copy
of the bill of complaint. If the court determines that such ruling is not in
accordance with law, it shall remand such proceedings to the Secretary with
directions either (1) to make such ruling as the court shall determine to be in
accordance with law, or (2) to
take such further proceedings as, in its opinion, the law requires. The pendency
of proceedings instituted pursuant to this subsection (15) shall not impede,
hinder, or delay the United States or the Secretary of Agriculture from
obtaining relief pursuant to section 8a(6) of this title. Any proceedings brought
pursuant to section 8a(6) of this title (except where brought by way of
counterclaim in proceedings instituted pursuant to this subsection (15)) shall
abate whenever a final decree has been rendered in proceedings between the
same parties, and covering the same subject matter, instituted pursuant to this
subsection (15).'5 Section 2, n. 4, supra.
6

Section 8c(3), n. 4, supra.

Section 8c(4), n. 4, supra.

See United States v. Rock Royal Coop., 307 U.S. 533, 549, 550, 59 S.Ct. 993,
1001, 1002, 83 L.Ed. 1446.

'Uniform price' means weighted average of minimum prices.

10

The preamble to the order recites the holding of hearings and compliance with
Section 8c(9) of the Act. Section 904.0 of the Order contains the Secretary's
findings and Section 904.1 the definitions of terms.
'Sec. 904.1(6) The term 'handler' means any person, irrespective of whether
such person is a producer or an association of producers, wherever located or
operating, who engages in such handling of milk, which is sold as milk or
cream in the marketing area, as is in the current of interstate or foreign

commerce, or which directly burdens, obstructs, or affects interstate or foreign


commerce in milk and its products.'
Section 904.2 enumerates the duties of the market administrator. Section 904.3
classifies milk into Class I milk and Class II milk according to its utilization.
Generally speaking, Class I milk is that which is utilized for sale as milk
containing from 1/2 to 1% to 16% butterfat or as chocolate or flavored milk,
while Class II includes all other uses.
Section 904.4 provides:
'Sec. 904.4 Minimum Prices. (a) Class I prices to producers. Each handler shall
pay producers, in the manner set forth in Sec. 904.8, for Class I milk delivered
by them, not less than the following prices:
'(b) Class II prices. Each handler shall pay producers, in the manner set forth in
Sec. 904.8, for Class II milk delivered by them not less than the following
prices per hundred weight: * * *.'
Section 904.5 provides for necessary informational reports by handlers, and
Section 904.6 deals with the application of the Order to exceptional types of
handlers. Section 904.7, dealing with computation of the weighted average,
read in its applicable portions as of July 28, 1941, as follows:
'Sec. 904.7 Determination of Uniform Prices to Producers. (a) Computation of
value of milk for each handler. For each delivery period the market
administrator shall compute, * * * the value of milk sold, distributed, or used by
each handler * * * in the following manner:
'(1) Multiply the quantity of milk in each class by the price applicable pursuant
to paragraphs (a), (b), and (c), of Sec. 904.4; and
'(2) Add together the resulting value of each class.
'(b) Computation and announcement of uniform prices. The market
administrator shall compute and announce the uniform prices
per hundredweight of milk delivered during each delivery period in the
following manner:
'(1) Combine into one total the respective value of milk, computed pursuant to
paragraph (a) of this section, for each handler from whom the market
administrator has received at his office, prior to the 11th day after the end of
such delivery period, the report for such delivery period and the payments

required by Sec. 904.8(b)(3) and (g) and (h) for milk received during each
delivery period since the effective date of the most revent amendment hereof;
'(4) Subtract the total amount to be paid to producers pursuant to Sec. 904.8(b)
(2);
'(5) Subtract the total of payments required to be made for such delivery period
pursuant to Sec. 904.9(b);
'(6) Divide by the total quantity of milk which is included in these
computations. * * *
'(7) Subtract not less than 4 cents nor more than 5 cents for the purpose of
retaining a cash balance in connection with the payments set forth in Sec.
904.8(b)(3);
'(9) On the 12th day after the end of each delivery period, mail to all handlers
and publicly announce (a) such of these computations as do not disclose
information confidential pursuant to the act, (b) the blended price per
hundredweight which is the result of these computations, (c) the names of the
handlers whose milk is included in the computations, and (d) the Class II price.'
As of October 28, 1941, Subsection (5) was revoked and the subsections
following it were renumbered, and the deduction theretofore required by it was
effected by amending Subsection (7) (new Subsection (6)) to read as follows:
'(6) Subtract not less than 5 1/2 cents nor more than 6 1/2 cents for the purpose
of retaining a cash balance in connection with the payments set forth in
904.8(b)(3) and 909.9(b);'
See n. 16, infra.
Section 904.8(a) and (b), dealing with the method of making payment, reads:
'Sec. 904.8 Payments for Milk. (a) Advance payments. On or before the 10th
day after the end of each delivery period, each handler shall make payment to
producers for the approximate value of milk
received during the first 15 days of such delivery period. In no event shall such
advance payment be at a rate less than Class II price for such delivery.
'(b) Final payments. On or before the 25th day after the end of each delivery
period, each handler shall make payment, subject to the butterfat differential set
forth in paragraph (d) of this section, for the total value of milk received during

such delivery period as required to be computed pursuant to Sec. 904.7(a), as


follows:
'(1) To each producer, except as set forth in subparagraph (2) of this paragraph
at not less than the blended price per hundredweight, computed pursuant to Sec.
904.7(b), subject to the differentials set forth in paragraph (e) of this section, for
the quantity of milk delivered by such producer;
'(2) To any producer, who did not regularly sell milk for a period of 30 days
prior to February 9, 1936, to a handler or to persons within the marketing area,
at not less than the Class II price in effect for the plant at which such producer
delivered milk, except that during the May, June, and September delivery
periods the price pursuant to Sec. 904.4(b)(3) shall apply, for all the milk
delivered by such producer during the period beginning with the first regular
delivery of such producer and continuing until the end of 2 full calendar months
following the first day of the next succeeding calendar month; and
'(3) To producers, through the market administrator, by paying to, on or before
the 23rd day after the end of each delivery period, or receiving from the market
administrator on or before the 25th day after the end of each delivery period, as
the case may be, the amount by which the payments required to be made
pursuant to subparagraphs (1) and (2) of this paragraph are less than or exceed
the value of milk as required to be computed for such handler pursuant to Sec.
904.7(a), as shown in a statement rendered by the market administrator on or
before the 20th day after the end of such delivery period.'
Other clauses of Section 904.8 deal with price differentials not here pertinent.
Section 904.9 authorizes the payments to cooperatives which are questioned
here. Eligibility requirements are set out in 904.9(a), which then provides:
'(1) Any such cooperative association shall receive an amount computed at not
more than the rate of 1 1/2 cents per hundredweight
of milk marketed by it on behalf of its members in conformity with the
provision of this order, the value of which is determined pursuant to Sec.
904.7(a), and with respect to which a handler has made payments as required by
Sec. 904.8(b)(3) and Sec. 904.10: Provided, That the amount paid shall not
exceed the amount which handlers are obligated to deduct from payments to
members under subsection (e) hereof and are not used in paying patronage
dividends or other payments to members with respect to milk delivered except
in fulfilling the guarantee of payments to producers; and that in cases where
two or more associations participate in the marketing of the same milk,
payment under this paragraph shall be available only to the association which

the individual producer has made his exclusive agent in the marketing of such
milk.
'(2) Any such cooperative association shall receive an amount computed at the
rate of 5 cents per hundredweight on Class I milk received from producers at a
plant operated under the exclusive control of member producers, which is sold
to proprietary handlers. This amount shall not be received on milk sold to
stores, to handlers, in which the cooperative has any ownership, or to a handler
with which the cooperative has such sales arrangements that its milk not sold as
Class I milk to such handler is not available for sale as Class I milk to other
handlers.'
Section 904.9(b) contains the direction for payment out of the cash balance
created by 904.7(b)(6), as amended, supra.
Section 904.9:
'(b) Payment to Qualified Cooperative Associations. The market administrator
shall, upon claim submitted in form as prescribed by him, make payments
authorized under paragraph (a), or issue credit therefor out of the cash balance
credited pursuant to Sec. 904.7(b)(5), on or before the 25th day after the end of
each delivery period, subject to verification of the receipts and other items on
which the amount of such payment is based.'
The deductions from payments by handlers to cooperative member producers,
referred to in Section 904.9(a)(1), quoted supra, are authorized by 904.9(e),
as follows:
'(e) Authorized member deductions. In the case of producers whose milk is
received at a plant not operated by a cooperative association of which such
producers are members and which is receiving payments
pursuant to this section, each handler shall make such deductions from the
payments to be made to such producers pursuant to Sec. 904.8 as may be
authorized by such producers and, on or before the 25th day after the end of
each delivery period, pay over such deductions to the association in whose
favor such authorizations were made.'
Section 904.10 requires each handler to pay to the market administrator not
more than 2 cents per hundredweight of milk delivered to him in order to meet
costs of administration. Section 904.11 covers the effective time, suspension, or
termination of the order.
11

'Blended price' means the uniform price less administrative deductions.

12

Cf. 7 C.F.R.1941 Supp. 904.7(a).

13

See 7 C.F.R.1941 Supp. 904.7(b).

14

7 C.F.R.1941 Supp. 904.7(b), 904.8(b)(1).

15

7 C.F.R.1941 Supp. 904.8(b)(3). The operations of the settlement fund are


described in United States v. Rock Royal Co-op., 307 U.S. 533, 571, 59 S.Ct.
993, 1011, 83 L.Ed. 1446.

16

This section has superseded 904.7(b)(5) in effect at the time this suit was
brought with reference to the deduction in issue. 6 F.R. 5482, effective October
28, 1941. See n. 10, supra.

17

Texas & N.O.R. Co. v. Brotherhood of R. & S.S. Clerks, 281 U.S. 548, 568, 50
S.Ct. 427, 433, 74 L.Ed. 1034; Virginian Ry. v. System Federation, 300 U.S.
515, 545, 57 S.Ct. 592, 598, 81 L.Ed. 789. General Committee v. M.-K.-T.R.
Co., 320 U.S. 323, 64 S.Ct. 146, and Switchmen's Union v. National Mediation
Board, 320 U.S. 297, 64 S.Ct. 95, do not look in the contrary direction. Both
assume claims created by statute in the petitioners and deny a judicial remedy
to those claims on the ground that 'Congress * * * has foreclosed resort to the
courts for enforcement of the claims asserted by the parties.' 320 U.S. 300 and
327, 64 S.Ct. 96 and 148.

18

United States v. Illinois Central R. Co., 244 U.S. 82, 87, 37 L.Ed. 584, 61 L.Ed.
1007; United States v. Los Angeles a S.L.R. Co., 273 U.S. 299, 314, 315, 47
S.Ct. 413, 416, 71 L.Ed. 651; Alabama Power Co. v. Ickes, 302 U.S. 464, 478,
58 S.Ct. 300, 303, 82 L.Ed. 374; Tennessee Power Co. v. T.V.A., 306 U.S. 118,
135, 59 S.Ct. 366, 368, 83 L.Ed. 543; Perkins v. Lukens Steel Co., 310 U.S.
113, 125, 60 S.Ct. 869, 875, 84 L.Ed. 1108; Singer & Sons v. Union Pacific R.
Co., 311 U.S. 295, 303, 61 S.Ct. 254, 257, 85 L.Ed. 198.

19

This distinction has long been recognized. Chief Justice Marshall phrased it in
vivid language as early as Marbury v. Madison, 1 Cranch 137, 165, 166, 2
L.Ed. 60, a fragment only of which follows: 'But where a specific duty is
assigned by law, and individual rights depend upon the performance of that
duty, it seems equally clear that the individual who considers himself injured,
has a right to resort to the laws of his country for a remedy.' Perkins v. Lukens
Steel Co., 310 U.S. 113, 125, 60 S.Ct. 869, 875, 84 L.Ed. 1108; Com. of
Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078.

20

Philadelphia Co. v. Stimson, 223 U.S. 605, 619, 32 S.Ct. 340, 343, 56 L.Ed.
570; American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110,
23 S.Ct. 33, 39, 47 L.Ed. 90.

21

Tennessee Power Co. v. T.V.A., 306 U.S. 118, 137, 59 S.Ct. 366, 369, 83 L.Ed.
543.

22

Marbury v. Madison, 1 Cranch 137, 165, 2 L.Ed. 60; American School of


Magnetic Healing v. McAnnulty, 187 U.S. 94, 109, 110, 23 S.Ct. 33, 39, 47
L.Ed. 90; Interstate Commerce Comm'n v. Union Pacific R. Co., 222 U.S. 541,
547, 32 S.Ct. 108, 110, 56 L.Ed. 308; International Ry. Co. v. Davidson, 257
U.S. 506, 514, 42 S.Ct. 179, 182, 66 L.Ed. 341; Morgan v. United States, 298
U.S. 468, 479, 56 S.Ct. 906, 910, 80 L.Ed. 1288; United States v. Carolina
Freight Carriers Corp., 315 U.S. 475, 489, 62 S.Ct. 722, 729, 86 L.Ed. 971;
Commissioner v. Gooch Milling & Elevator Co., 320 U.S. 418, 64 S.Ct. 184.

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